Opinion
2d Crim. No. B254702
01-12-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO MADRIGAL, Defendant and Appellant.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Yun K. Lee and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 2013023115)
(Ventura County) OPINION ON REMAND
Antonio Madrigal appeals after a jury convicted him of active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)), assault by force likely to produce great bodily harm (§ 245, subd. (a)(4)), and conspiracy to commit assault by force likely to produce great bodily harm (§§ 182, subd. (a)(1), 245, subd. (a)(4)). The jury also found two true allegations that the assault and the conspiracy were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). In a bifurcated proceeding, appellant admitted that he had five prior strike convictions (§ 667, subds. (d)(1) & (e)(1)) and a prior serious felony conviction (§ 667, subd. (a)(1)), and had served two prior prison terms (§ 667.5, subd. (b)). The trial court sentenced him to a state prison term of 25 years to life plus 10 years.
All statutory references are to the Penal Code unless otherwise stated.
In his opening brief, appellant contended (1) the evidence is insufficient to support his convictions; (2) the court abused its discretion by allowing a gang expert to discuss hearsay reports of appellant's prior in-custody conduct; and (3) the court abused its discretion by failing to grant his counsel additional time to investigate and present a new trial motion. In a supplemental brief, appellant contended that the gang expert also related testimonial hearsay in violation of appellant's Sixth Amendment right to confront and cross-examine witnesses, as contemplated in Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and its progeny.
In our original opinion, filed on October 8, 2015, we affirmed the judgment in its entirety. The Supreme Court granted appellant's petition for review on his Crawford claim and deferred further action pending the court's decision in People v. Sanchez, S216681. After the court issued its decision in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), it transferred the instant case back to our court with direction to reconsider the issues in light of Sanchez. The parties submitted supplemental briefs.
In light of Sanchez, we conclude that at least some of the challenged statements related testimonial hearsay in violation of Crawford. Even assuming that all of the challenged statements were erroneously admitted, we conclude that the error is harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18 (Chapman). Accordingly, we again affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The July 23, 2013 Assault and Related Crimes
The Ventura County Hall of Justice has a holding facility for inmates with court appearances. Large cells house groups of inmates and small cells called "Condos" hold inmates who must be segregated from others. Condo C of the facility faces Cell 13, on the opposite side of a central corridor, which provides access to the cells and condos. The occupants of Cell 13 and Condo C can see each other.
On July 23, 2013, appellant, a member of the Colonia Chiques gang, was placed alone in Condo C pursuant to a "keep-away" order. About 30 other inmates were in Cell 13, including Colonia Chiques members Alexis Sandoval and Frederico Zapien and Southside Chiques gang member Ronald Amesquita.
Surveillance cameras monitored and recorded the interior of Cell 13 and the corridor that separates Cell 13 from Condo C. Video recordings of the incident were played at trial.
Immediately after appellant was placed in Condo C, another inmate, former Colonia Chiques member Ernesto Duran, was placed in Cell 13. Duran sat on a bench along the wall on the right side of the cell. Amesquita approached the front of the cell, facing appellant's cell. He looked back, toward the bench where Duran sat, before he looked toward appellant's cell, and used hand gestures that spelled "Okay," and "Wait."
Filiberto Cardenas, a former long-term Colonia Chiques member, served as a Sureno for the Mexican Mafia while he was incarcerated. During trial, Cardenas translated the hand signs depicted in the July 23 video surveillance tape of Cell 13. Cardenas testified that Surenos use a form of sign language to prevent prison authorities from hearing and understanding their communications. Cardenas and appellant used Surenos signs to communicate with each other, most recently in October or November of 2012.
Amesquita walked to a bench in the middle of Cell 13, across from Duran, and kept looking toward appellant's cell. Amesquita spoke to Duran and gestured toward appellant's cell. Duran stood, shook Amesquita's hand, walked to the front of the cell, and looked toward appellant's cell. Duran nodded as if he were acknowledging someone, pointed at himself, and returned to his seat. Amesquita remained seated and continued gesturing toward appellant's cell as if they were conversing. Amesquita also looked toward Duran, then looked toward appellant's cell and pointed at Duran. Amesquita signed "That vato on," and "That fool that tat," which means something like that fool with tattoos. Duran had extensive visible tattoos on his arms.
Amesquita moved to the left side of the cell where Zapien and Sandoval were sitting. Zapien and Sandoval then approached the front of their cell and looked at appellant's cell. Sandoval signed, "What's up?" Zapien and Sandoval both turned, looked toward Duran, then looked back toward appellant's cell. Duran fidgeted and moved a paper he held in his hand. Sandoval looked toward Amesquita. Amesquita joined him, looked at appellant's cell, and turned as if he were whispering in Sandoval's ear. Sandoval and Amesquita both faced appellant's cell. While pointing toward Duran, Amesquita signed, "The fool that tat up?"
Amesquita, Sandoval and Zapien walked toward Duran. Zapien stood to the left of Duran, Sandoval stood in front of Duran, and Amesquita stood to Duran's right. Sandoval lunged at Duran and began hitting him. Amesquita and Zapien quickly joined in the assault. While punching Duran, they moved to the right rear corner of the cell. Other inmates joined in the attack, including Alex Garcia, Juan Ledezma and Antonio Chavez. Garcia looked at appellant's cell before he started punching Duran. The fight ended when deputies entered the cell.
Erik Raya was an inmate in Cell 13 and witnessed the incident. Before the fight began, Raya saw appellant, Amesquita, Zapien, and Sandoval communicate with sign language.
Sometime after the fight ended, Deputy Gary Morales heard a heated discussion between appellant and Duran. Appellant told Duran, "You're good now. You're okay." Morales opined that appellant was conveying to Duran that the assault had resolved any preexisting problem between them. Duran refused to testify at trial.
All law enforcements officers referenced herein are members of the Ventura County Sheriff's Department.
B. Gang Evidence
1. Colonia Chiques
Detective Cody Collet testified as an expert on criminal street gangs in Ventura County. The Colonia Chiques gang has about 1,000 members and claims a large part of Oxnard as its territory. Its members identify with the Dallas Cowboys and Indianapolis Colts and often wear clothing with five-point stars and the letter C. Members also display hand signs that form "C," "H," and a five-point star. The gang's primary activities are killing, assaulting victims with deadly weapons, extortion, and witness dissuasion. Its rivals include Ventura Avenue, Southside Chiques and the 12th Street Locos.
Detective Collet opined that appellant was an active Colonia Chiques member on July 23. He based his opinion on several factors: Appellant was with Colonia Chiques members during multiple prior police encounters; he acted with other members of the gang on July 23; he wore Dallas Cowboys attire; and he flashed Colonia Chiques gang hand signs. Appellant also had several tattoos associated with Colonia Chiques, and acquired them on a continuing basis. Detective Collet also opined that on July 23, Zapien and Sandoval were active members of Colonia Chiques, unlike Duran who formerly associated with Colonia Chiques but was no longer active. The detective opined that Amesquita was a member of the Southside Chiques.
2. Mexican Mafia and Surenos
Deputy Jonathan James testified as an expert on the Mexican Mafia and the Surenos. The Mexican Mafia is a large criminal gang with members in state and federal penal institutions in California. Its members use fear, intimidation and violence to control Southern California Hispanic gang members. The Mexican Mafia is a multi-level criminal organization. The top tier includes approximately 200 to 250 documented members known as "Brothers" or "Carnals." The second tier consists of "Surenos," foot soldiers who accept the Mexican Mafia's ideology and "proactively" commit crimes on its behalf. The third tier consists of gang members called "Southsiders," who also accept Mexican Mafia ideology and provide "reactive" support. An incarcerated gang member is automatically a Southsider if he belongs to a neighborhood gang such as Colonia Chiques. Inmates with no gang affiliation are "residents."
Members of rival neighborhood gangs cease their rivalries while incarcerated, provided their respective neighborhood gangs accept Mexican Mafia ideology. Thus, a Surenos leader has authority over Surenos who belong to rival neighborhood gangs. A Sureno can be "checked" (disciplined) for noncompliance with the leader's orders.
The Mexican Mafia has a strict code of conduct. Among other things, the code prohibits associating with Black inmates; engaging in homosexual acts and/or sharing a cell with homosexual inmates; and communicating with law enforcement. Organization members or residents who talk to law enforcement are viewed as "rats" or "snitches" and are subject to retaliation. The code compels Surenos to establish an area of control in jail or prison and attack inmates charged with sexual offenses.
The Mexican Mafia uses Aztec and Mayan symbols, such as the Aztec eagle and a "Kanpol," the Mayan symbol for number 13, which is significant because M is the 13th letter of the alphabet. A gang member must earn the right to have a Mexican Mafia tattoo, often by committing crimes.
Deputy James testified about predicate offenses committed by Surenos. In November 2012, two Ventura County Jail Sureno inmates committed assaults by means likely to produce great bodily injury. In February 2012, a Sureno in the California Youth Authority said, "This is for trece" (the Mexican Mafia) as he assaulted a correctional officer. James also testified that in July 2003, Sureno member Kevin McCarthy committed attempted manslaughter while trying to extort money for the Mexican Mafia, when he was not in custody.
Deputy James opined that appellant was an active Sureno. He cited several factors supporting his opinion, including appellant's ongoing association with Sureno and Mexican Mafia members. James testified that in May 2001, appellant was stopped with Anthony Villa, a high-ranking Sureno who belonged to Colonia Chiques, and was a Mexican Mafia Associate with extensive Mexican Mafia tattoos. Appellant also had multiple Mexican Mafia and Surenos tattoos. In October 2012, he had an Aztec eagle warrior tattoo, which reflected his status as a "good leader" in custody. In November 2012, he had a new Kanpol (Mayan 13) tattoo on his left arm. By July 2013, he had another, newer "Mayan 13" tattoo. His continuing acquisition of new Sureno-related tattoos was significant because it showed his ongoing commitment to the Surenos and the Mexican Mafia.
Deputy James further testified that appellant's participation in the July 23 incident showed his Surenos leadership role. James opined that Zapien, Amesquita, Sandoval, Ledezma, Garcia and Chavez were active Surenos members. The incident involved members of rival street gangs who supported each other in assaulting Duran. Before the assault, someone accused Duran of snitching. Duran in effect denied the accusation by saying, "I have my state paperwork." James testified that appellant's post-incident statement to Duran, "You're good now, you're okay," showed that appellant considered the assault to be sufficient punishment for snitching. James opined that only a high level Sureno could make such a statement and the combined circumstances indicated appellant was a Surenos leader.
DISCUSSION
Sufficiency of the Evidence
Appellant contends the evidence is insufficient to support his convictions. In reviewing this claim, we examine the entire record and draw all reasonable inferences therefrom in favor of the judgment to determine whether there is reasonable and credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Streeter (2012) 54 Cal.4th 205, 241.) Our review is the same in a prosecution primarily resting upon circumstantial evidence. (People v. Watkins (2012) 55 Cal. 4th 999, 1020.) We do not reweigh the evidence or reassess the credibility of witnesses. (People v. Albillar (2010) 51 Cal.4th 47, 60.) We accept the logical inferences that the jury might have drawn from the evidence although we would have concluded otherwise. (Streeter, supra, at p. 241.) "If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]" (Albillar, supra, at p. 60.)
"'Conspiracy requires two or more persons agreeing to commit a crime, along with the commission of an overt act, by at least one of these parties, in furtherance of the conspiracy.' [Citation.]" (People v. Homick (2012) 55 Cal.4th 816, 870.) Conspiracy requires the intent to agree, and the intent to commit the underlying substantive crime. An agreement among alleged conspirators is often established by circumstantial evidence. Thus, the existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. Common gang membership may be part of the circumstantial evidence that supports the inference that perpetrators acted as conspirators. (People v. Superior Court (Quinteros) (1993) 13 Cal.App.4th 12, 20.)
Aiding and abetting liability requires that the defendant act with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing or encouraging or facilitating the commission of the crime, and that by act or advice he aided promoted, encouraged, or instigated the commission of the crime. (See People v. Campbell (1994) 25 Cal.App.4th 402, 409.) Other factors include the defendant's companionship or relationship with the perpetrator and his conduct before and after the offense. (Ibid.)
In challenging the sufficiency of the evidence, appellant contends there is "no substantial evidence that [he] was a member of the conspiracy or that he aided and abetted the assault." More specifically, he claims that the only evidence of his status as a "high-ranking, shot-calling Sureno" was "bare speculation by Deputy James that appellant was a tank boss, the influential Sureno who could order other Surenos or Southsiders to attack another inmate."
The record belies his claim. The prosecution presented photographs of appellant's tattoos depicting Mayan and Aztec symbols, as well as James's expert testimony that Surenos wear such tattoos. Cardenas, who was a Sureno for many years, testified that appellant was a Sureno. He further testified that he and appellant used Surenos signs to communicate as recently as November or December 2012. The conduct of appellant, Amesquita, Zapien and Sandoval provides additional strong circumstantial evidence from which the jury could infer that appellant instigated and encouraged the assault upon Duran. Raya testified that just before the July 23 fight, Amesquita, Sandoval, and Zapien were communicating with appellant and all four men were using hand signs. The surveillance video depicts Amesquita and Sandoval using Surenos signs as they faced appellant's cell. Amesquita and Sandoval pointed toward the bench where Duran sat while Amesquita used signs to ask if appellant meant that guy with the tattoos. Duran had extensive visible tattoos. Amesquita spoke with Duran immediately before Duran stood, walked to a position facing appellant's cell, gestured toward himself, and returned to his seat on the bench. Zapien, Amesquita and Sandoval gathered together briefly before they approached Duran simultaneously and attacked him. Inmate Garcia, who joined in the attack, did so only after he stood and looked toward appellant's cell. This evidence is sufficient to support the convictions.
Crawford and Sanchez
In his opening brief, appellant contended the trial court abused its discretion (and thereby violated appellant's rights to due process and a fair trial) by allowing Deputy James to testify to inadmissible hearsay contained in incident reports regarding appellant's prior in-custody conduct. In his supplemental brief, appellant asserted that the evidence is testimonial hearsay under Crawford and was thus admitted in violation of his Sixth Amendment right to confront and cross-examine witnesses.
Deputy James essentially testified as follows: In March 2005, appellant admitted that he attacked another inmate charged with a sex crime. In July 2005, appellant struck an inmate who said something appellant may have perceived as disrespectful. In August 2005, appellant assaulted another inmate (Kincaid) after Kincaid asked why appellant forbade another inmate from loaning something to Kincaid. In July 2006, appellant told a homosexual inmate to request a transfer to another section. In December 2006, appellant helped instigate a riot between southern and northern California Hispanic inmates. Deputy James opined that this conduct was typical of an influential "tank boss" who runs a section of a jail or prison and claims to be a high-ranking Sureno.
In our original opinion, we concluded that the evidence was not hearsay because it was not admitted for its truth, but rather for the limited purpose of showing jurors the basis for James's opinions. In rejecting appellant's Crawford claim, we relied on a prior opinion in which we concluded that "[h]earsay in support of expert opinion in simply not the sort of testimonial hearsay the use of which Crawford condemned." (People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427.)
After we filed our opinion, the Supreme Court issued its opinion in Sanchez. The court began by holding that an expert's case-specific statements about a defendant's gang membership were inadmissible hearsay under state law. (Sanchez, supra, 63 Cal.4th at pp. 670-671.) The court reasoned that "[w]hen an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert's opinion, it cannot logically be asserted that the hearsay content is not offered for its truth. In such a case, 'the validity of [the expert's] opinion ultimately turn[s] on the truth' . . . of the hearsay statement. If the hearsay that the expert relies on and treats as true is not true, an important basis for the opinion is lacking." (Id. at pp. 682-683, italics omitted.) The court went on to explain that the hearsay statements implicated the Sixth Amendment because they were testimonial, and thus should have been excluded under Crawford. (Sanchez, supra, 63 Cal.4th at pp. 694-698.) The court also found that the error in admitting the statements in that case was not harmless beyond a reasonable doubt (Chapman, supra, 386 U.S. 18) because the testimonial hearsay was "the main evidence of defendant's intent to benefit" a criminal street gang. (Sanchez, at pp. 698-699.)
In his supplemental brief following the Supreme Court's remand, appellant reiterates his claim that Deputy James's testimony violated Crawford to the extent it related testimonial hearsay regarding appellant's prior custodial conduct. Appellant also expands his Crawford claim to include additional categories of testimony. He contends that both gang experts erroneously related facts and statements contained in inadmissible "gang packets" and other documents as support for their opinions that (1) appellant was a Colonia Chiques member and a Sureno who exercised authority over other Hispanic gang members; (2) the crimes were committed to benefit a gang; and (3) appellant's co-perpetrators were Hispanic gang members and Surenos. He further contends that Deputy Collet violated Crawford by relating the facts underlying appellant's 2007 conviction for making criminal threats and attempting to dissuade a witness, which was offered as one the predicate offenses required to establish that Colonia Chiques is a criminal street gang.
In making the latter claim, appellant does not dispute that the certified record of his 2007 conviction was admissible to prove both the fact of the conviction and that the offenses of were actually committed. (Evid. Code, § 452.5, subd. (b); People v. Cadogan (2009) 173 Cal.App.4th 1502, 1515, fn. 4.)
To determine whether a statement is inadmissible under Crawford, the court "must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term." (Sanchez, supra, 63 Cal.4th at p. 680.)
In his original supplemental brief, appellant asserted that Deputy James's testimony regarding the reports of appellant's prior in-custody conduct related testimonial hearsay in violation of Crawford. He offered that the statements contained in those reports were testimonial hearsay because they described past criminal conduct and were not made in response to efforts to resolve a present emergency. (See Davis v. Washington (2006) 547 U.S. 813, 822.) Although appellant identifies numerous additional statements as case-specific hearsay in his supplemental brief following remand, he makes no effort to demonstrate that these statements were also testimonial.
We agree that Deputy James related testimonial hearsay when he testified to statements contained in the reports regarding appellant's prior in-custody conduct. Even assuming that each of the other challenged statements also related testimonial hearsay, the error in admitting the statements was harmless beyond a reasonable doubt. (Sanchez, supra, 63 Cal.4th at p. 698.) In making this determination, we ask whether it is "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." (Neder v. United States (1999) 527 U.S. 1, 18.)
We reject the People's assertion that appellant forfeited his Crawford claims by failing to object below. Based on the state of the law at the time of trial, any objections would have been futile. (People v. Rangel (2016) 62 Cal.4th 1192, 1216-1217.)
Here, the independent evidence of appellant's guilt is overwhelming. In arguing to the contrary, appellant claims "[t]he entire judgment against [appellant] rests upon the vague evidence depicting assailants and victim communicating with [appellant] by means of sign language prior to the crimes. The jury's inference as to what was communicated is corroborated solely by the case-specific hearsay information that [appellant] was the higher ranking tank boss, and instigator of any and all criminal activity by Surenos in the jail." The record belies this claim. The jury was shown a video of the incident and the sign language depicted in the video was interpreted by a former Colonia Chiques member. "If a picture is worth a thousand words, a moving picture is worth a million." (People v. Webb (1999) 74 Cal.App.4th 688, 690.) It is clear beyond a reasonable doubt that an objectively rational finder of fact would conclude from this evidence that the inmates who attacked Duran did so in response to communications they received from appellant.
There was also independent evidence that appellant directed the attack in order to punish Duran. Inmate Revelez overheard one of the attackers accuse Duran of "snitching," and Deputy James opined that anyone who speaks to law enforcement is considered a "snitch" and could be punished. Deputy Morales overheard appellant tell Duran "[y]ou're good now" after the assault was completed, and opined that appellant was thereby conveying to Duran that the issue had been resolved now that his punishment had been inflicted. In light of this evidence, the error in admitting testimonial hearsay to prove that appellant played a part in the attack is harmless beyond a reasonable doubt.
There was also overwhelming independent evidence that appellant and his co-perpetrators were gang members and that the crimes were committed for the benefit of, at the direction of, or in association with a gang were not based solely on the challenged testimony. Most notably, the experts' opinions were also based on appellant and his co-perpetrators' gang tattoos, which were independently proven by photographs. Sanchez expressly recognized the validity of such opinions. Given the overwhelming independent evidence that (1) Colonia Chiques and the Surenos are criminal street gangs; (2) appellant is a member both gangs; (3) he aided and abetted and conspired with his fellow gang members in attacking Duran; and (4) the attack was committed to benefit a gang, the error in admitting testimonial hearsay is harmless beyond a reasonable doubt. (Sanchez, supra, 63 Cal.4th at p. 698; Neder v. United States, supra, 527 U.S. at p. 18.)
The court provided as an example: "That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to the gang." (Sanchez, supra, 63 Cal.4th at p. 677.) --------
New Trial Motion
Appellant contends that the trial court abused its discretion and deprived him of due process by failing to allow counsel additional time to investigate and present a motion for new trial. We disagree.
The trial court may grant a continuance only upon a showing of good cause. (§ 1050, subd. (e); People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1181, abrogated on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) On review, we decide whether the trial court abused its discretion by denying the requested continuance. (Ibid.) "Good cause" requires a showing that counsel has prepared with due diligence. (People v. Doolin (2009) 45 Cal.4th 390, 450.) Not every denial of a request for more time denies due process of law, even if the party seeking the continuance thereby fails to offer evidence. (People v. Beames (2007) 40 Cal.4th 907, 921.)
The party challenging a ruling regarding a continuance request bears the burden of establishing an abuse of discretion. (People v. Hajek and Vo, supra, 58 Cal.4th at p. 1181.) An abuse of discretion is established only if the court's decision is arbitrary or unreasonable. (Id. at pp. 1180-1181.)
Relevant Background
On December 6, 2013, the jury returned its verdicts convicting appellant. The court granted a defense request to set a sentencing hearing for January 22, 2014. By December 13, 2013, appellant had retained the office of private counsel Mark Bledstein. On January 7, 2014, Bledstein contacted appointed trial counsel, Ken Wiksell, regarding his substitution as appellant's counsel. Bledstein placed the matter on the January 16, 2014, calendar to request permission to substitute in as appellant's counsel.
Bledstein did not appear at the January 16 hearing. His associate, Adam Koppekin, appeared and advised the court that Bledstein's office would not be ready for the January 22 sentencing hearing. Koppekin requested a continuance to the "last possible date" before the trial judge's pending retirement. He could not provide an answer when the court asked why the office had "frittered away" a month following its retention before seeking to substitute in as counsel and obtain a continuance. The court granted Bledstein's motion to substitute in, but denied his request for a continuance.
Bledstein appeared on the scheduled January 22 sentencing date and submitted motions to continue the matter and strike five prior felony strike convictions for purposes of sentencing, pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Bledstein stated he had not yet ordered the trial transcripts from the reporter, and estimated he would need 60 or 90 days before sentencing proceedings. The court questioned his failure to order the transcripts earlier and stated his shortage of time was "self-inflicted." The court indicated it had ordered the court reporter to expedite the transcription and the transcripts could be ready by February 10. Bledstein requested a continuance to a date in early March. The court granted a continuance of 33 additional days, to February 24, 2014, one day before its final day on the bench.
On February 20, 2014, Bledstein filed a motion for new trial, claiming that trial counsel failed to provide appellant competent representation because he did not consult a gang expert to rebut the prosecution gang expert's opinion. The motion stated that Bledstein had "contacted a gang expert, Mr. Martin Flores, who expressed a different opinion regarding an interpretation of the events that transpired during this brawl." The motion did not include any supporting declaration.
On February 24, the court heard argument on the new trial motion. Bledstein argued that he did not "believe prior counsel consulted any expert witnesses." Bledstein represented that he had personally contacted Flores, a gang expert witness, who expressed a contrary opinion to that of the prosecution expert. While describing Flores's opinion, Bledstein said, "this is something I could have probably put together a little better had I had a little more time." Citing the absence of any supporting declarations, the trial court concluded there was no showing that trial counsel did not consult a gang expert, and it denied the new trial motion. During a subsequent discussion of the Romero motion, Bledstein stated, "[G]oing back to my motion for a new trial, . . . if the court wants to give me another month, I will get the gang expert. I will have him read the transcript and put together a better motion." He stated that he did not "know exactly what" his gang expert would say, and he only knew what he thought the expert was going to say. The court denied the request for additional time and subsequently denied the Romero motion.
Appellant has failed to establish that the trial court abused its discretion in denying his request for additional time to investigate and present his new trial motion. (People v. Hajek and Vo, supra, 58 Cal.4th at p. 1181.) His February 20 new trial motion claimed trial counsel was ineffective because he failed to consult with a gang expert to rebut the opinion of the prosecution expert. That motion lacked any supporting declaration, or even a statement that current counsel had asked trial counsel whether he consulted with a gang expert. The court did not act unreasonably or arbitrarily in denying the request for additional time to investigate and present the new trial motion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT, P. J.
YEGAN, J.
James P. Cloninger, Judge
Superior Court County of Ventura
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Yun K. Lee and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.